‘Anti-Government’ Cannot Be The Test Of Judicial Independence: Swaminathan Gurumurthy

Gurumurthy said the discussion on transparency and public trust required a “helicopter view” and that the legal system was “not beginning on a clean slate.” “The rot is deeper. Unless we recognize that the rot is deeper, we cannot find an answer to that,” he said.

He said a historical analysis was necessary to understand the mistakes that had contributed to the present situation, adding that the judiciary, Bar, media and public had all contributed to what he described as the “rot” in institutions.

“Unless we understand the distortions that have taken place and how it has affected the institutions and how it has eroded the moral foundations of the institutions, to discuss about transparency or how to ensure that wrong things do not take place in any particular institution including the judiciary will be only a theoretical discussion,” Gurumurthy said.

'Before 1969, politics and ethics were not divorced'

Gurumurthy divided the issue into two levels; the macro level, concerning the independence of the judiciary, and the micro level, concerning bias, compromise and corruption. He said the macro question required a historical perspective and identified 1969 as a significant point in the evolution of political polarisation in India.

“Before 1969, politics and ethics were not divorced. It is from 1969 that divorce took place,” he said.

Gurumurthy recalled his experiences during the Emergency and his association with the Indian Express, saying he witnessed two institutions: the media and judiciary, coming under pressure.

He said the media's confrontation with the executive during that period eventually resulted in “anti-establishment” becoming associated with the idea of an independent press. According to Gurumurthy, the judiciary similarly came under attack from the executive, leading to a series of institutional confrontations.

On Kesavananda Bharati and Judicial-Executive conflict

Gurumurthy discussed the evolution of constitutional jurisprudence following cases concerning bank nationalisation, constitutional amendments and the Kesavananda Bharati judgment.

He said the basic structure doctrine had subsequently been extended in its application and had significantly altered the relationship between Parliament, the executive and judiciary.

He described the Kesavananda Bharati judgment as a “bombshell” and said the judiciary had subsequently come to exercise significant influence over constitutional questions. “The judiciary virtually took over the constitution making in India,” Gurumurthy said, while acknowledging that he did not wholly support the judgment.

He also referred to the supersession of judges following the Kesavananda Bharati judgment and the judiciary's response during the Emergency. Recalling the period, Gurumurthy said that he and Ramnath Goenka had written a petition by hand in candlelight after electricity was cut off at the Indian Express.

He argued that the basic structure doctrine had not prevented the Emergency or the Supreme Court's judgment in the ADM Jabalpur case.

'Unless a Judge is seen to be Anti-Government, He is not accepted as Independent'

Gurumurthy said the institutional relationship underwent another significant change in the 1990s when the executive became weaker and the judiciary became more assertive.

Discussing the Second Judges Case and subsequent developments concerning judicial appointments, he questioned the transparency of both executive and judicial decision-making. “What the government was doing was not transparent. Assume what the judiciary began doing was equally non-transparent,” he said.

Gurumurthy said the judiciary had become caught in a psychological pattern similar to that of the media, where being perceived as anti-establishment was treated as a marker of independence. “This is a psychological catch and that is running through even today,” he said.

He added that the judiciary was under pressure from several forces, including a powerful and ideological Bar, social media and international interference. “Unless a judge is seen to be anti-government, he is not accepted as independent,” Gurumurthy said, calling for a wider debate on the issue.

At the same time, he said the judiciary today was “far more independent” and did not need to project an anti-government narrative to establish its independence. “The judiciary need not have to have a narrative of being anti-government to be independent,” he said.

Calls for Ram Jethmalani Memorial Lecture to become Institution

Gurumurthy suggested that the Ram Jethmalani Memorial Lecture should evolve into an institution bringing together different stakeholders, including the judiciary, executive, academics and media.

He suggested that retired judges and former administrators could represent the judiciary and executive to allow for greater freedom of discussion. “We must go through the historical journey. How we have faltered? Who has faltered? When, why and in progress?” he said.

Gurumurthy said the objective should be to revisit history, learn from the past and identify how institutional problems could be addressed without being constrained by present ideological or contextual considerations.

'There is Bias...Judicial corruption'

Turning to the micro level, Gurumurthy said issues of bias and judicial corruption were directly confronting the legal system. “There is bias. All kinds of bias are being cited,” he said, adding that judicial corruption also had to be addressed.

He said the critical question was not merely whether corruption existed, but how institutions responded when instances of corruption came to light. “The systemic answer to that is when such a thing hits your eye, how are you responding? That is the most important thing there,” he said.

Referring to the controversy involving sacks of currency allegedly found burnt in the outhouse of a judge, Gurumurthy said both the executive and judiciary had failed in their response. He attributed the difficulty in addressing such situations to the conflict between the judiciary and executive and the historical perception surrounding judicial independence.

Gurumurthy said the judiciary and executive needed to work with each other for the legal and administrative systems to function effectively. “Without working with the executive, the judiciary will not be effective. Without working with the judiciary, the executive cannot deliver,” he said.

He concluded by reiterating that institutional reform could not be achieved merely by changing rules and regulations. “Unless that is rooted out, I don't think any amount of tinkering with the rules is going to help,” Gurumurthy said